Inside an “Environmental ReviewTribunal Hearing”:………….more like a “kangaroo court”!

Here is a blow by blow report on the nuances and inner workings of a typical ERT hearing that is happening more and more here in Ontario as Industrial Wind Developments are encroaching on Rural residences and are having severe Health, Financial and Social repercussions which have forced ordinary hard working Ontario Citizens to demand some type of legal respite from these outrageous and useless developments that are ruining Rural Ontario!

One would think with a bevy of high priced lawyers and appointed adjudicators that this whole exercise would render some type of professional behaviour from the Tribunal…………..you would be wrong!

by Harvey Wrightman
Perhaps the biggest problem with these Environmental Review Tribunal appeal hearings is we get only the “appearance” of a fair hearing. Tuesday’s session was at the Kohler Community Centre, a WW2 Air Force barracks, well maintained by the onsite caretaker who obviously must do wonders with a limited budget – I hope that point is appreciated by the team of lawyers (some @ $500/hour) who descend on our rural communities. Wishful thinking – all we get from these people are averted looks, fake smiles and condescending remarks. Like a crew of evangelists sweeping into a new land, there is no regard let alone respect for local opinion and knowledge. Our thoughts are to be replaced with the new “green” beliefs.

The room is small and we sat directly behind the Samsung counsel, Sarah Powell and Matthew Milne-Smith (hired gun prepped and loaded for the day), sitting side-by-each to the Ministry of Environment’s Frederika Rotter and Sarah Kromkamp. A tangle of cords going to the court recorder and from there to the panel members connected them all to netbook computers so that they could scroll through all the documents, and read the transcript easily. But the lines ended there. None of the appellants had the electronic hook-ups. Why? – well it was all paid for by Samsung. They aren’t going to feed the locals/plebs. Yes, that means OUR MOE has documents that as a government ministry should freely make available to us. Another example of “loading the dice”, but no surprise as this government is deep into money addiction and casinos.

The opposing counsel were nervous – Freddy back to nail biting, repeatedly turning to the audience and faintly expressing a wolfish grin. Milne-Smith (umbrella man), sat stiffly with his shoes turned up and I couldn’t help but notice that his shoes had been resoled more than once, the last time a partial heel was applied at a very odd angular cut. I guess Matthew hangs onto his nickles!

The main witness was Scott Petrie, executive director of long point waterfowl and adjunct professor at Western – a formidable, confident expert witness, and like all such people one could see that he enjoyed the advantage of his position. Try as they might, there are so few lawyers who invariably have little in the way of a science or math background, they have a hard time questioning those who do. Someone like Scott, who has 50+ publications in scientific journals can easily sit and wait for them to come to him and then pummel them back into the corner. It really is “unfair”, but given the heavy bias that is applied to appellants, an occasional battle champion is welcome. By contrast, as Dr. Petrie noted, of the 8 consultants who worked on the “natural heritage” reports there were only 5 published works from all of them – no peer-reviewed articles. With no senior manager having a research oriented cv, the pre-construction assessments and post–construction monitoring regimes are not robust. There are many holes in the reports that simply lead one to question the assumptions. Worse, there was no request from the company for data or reports that Long Point waterfowl has on hand, and no use of locals who could also provide useful information on habitats and wildlife. Instead we learn from the survey notes of Sean Male that he was able to identify only about a dozen birds. 350 of his sitings were categorized as “unknown”. Dr. Petrie remarked, “He didn’t know birds.” One cannot expect rigour where there is no basic knowledge.

In Dr. Petrie’s opinion Hatch Engineering conducted studies that were scientifically unsound, and lacking in post-construction monitoring saying, “…they produced a little bit of data and made a whole lot out of it.”

Dr. Petrie dismissed the field work as simple “drive-by” surveys noting that serious studies use aircraft to do actual counts of birds. Surveys for waterfowl were largely done towards the latter part of spring migration, missing significant activity in February and March.

Locating turbines in phalanxes along the shore-line of Lake Erie presents a barrier to the twice daily flight of waterfowl from the lakeside staging areas to the inland grain fields which with the advent of no-till field practices has enhanced the grain fields as food sources and having a positive influence on waterfowl abundance. Each turbine presents a 100m exclusion/avoidance zone for the birds. As Scott said, the birds do not land 100– 200m elsewhere and “walk in for lunch.” He stated also that waterfowl have been recorded as far as 40km inland feeding, with the average distance being 8-10 km. There are a lot of turbines proposed for these inland areas.

Dr. Petrie had harsh words for the MNR guidelines saying, “…it isn’t science…” when wondering where the biological justification for the 120m setback from wetlands/woodlots was established. As he said, “…maybe it’s OK for snakes in a hibernaculum, but not for eagles…”

Samsung’s Milne-Smith must have boned-up for a week on a couple of journal articles and stumbling over pronunciations he read selectively from one trying to make the point that there were other causes for displacement of birds in a particular study. Scott, read further from the article noting that the quote was quite selective and indeed that the author admitted that IWT’s were a major factor in this instance.

Science not working for advantage, Milne-Smith took another tact after a somewhat curious and oblique entry speaking about the increased incidence of open water during winter on Lake Erie and the consequent increase of waterfowl remaining throughout the winter on the north Erie shore. His voice rose as he stared directly at Dr. Petrie; and, like a preacher from the pulpit shouted,

“Do you believe in Global Warming?”

The audience erupted protest and I said aloud, “What the hell is this – a witch hunt?” That got the attention of the chair who admonished that , “…one might have to remove oneself…” – delivered with a smile. The chair expressed interest in the question.

Unfazed, Scott, thought briefly about the question and replied basically that there were several factors to consider including “ global warming” – maybe, maybe not. He wasn’t sure.

Smith inferred that habituation was possible for waterfowl encountering turbines using another study from the Orkney Is. where large numbers of waterfowl persist. Dr. Petrie said that another possibility is that the site is so attractive to the birds that they are sucked into “a black hole” and mortality is increased. Not much in the way of mortality studies in the North Atlantic. In his opinion habituation is possible but unlikely. Displacement effects in the feeding/staging areas is habitat loss and impacts worsen with time.

Freddy of course lacks any semblance of the scientific mind and chose instead to ask about his status as a hunter and affiliation with hunting organizations. Scott pointed out the Long Point waterfowl receives $12 from the hunting community for every $1 of government money – none from the wind industry.

Hardly listening to this Freddy then asks if he has ever taught a course on the impact of wind turbines. He replies, “No, and I’m not aware of anyone doing so.” Good point Freddy, we need some real info to counter the propaganda that is being forced on kids in grade 4-5 courtesy of McGoosey.

Freddy asked if he, Dr. Petrie, had ever commented on the EBR registry,

Reply: “ I used to comment on them when I thought it might mean something.” – an conclusion which many of us have come to.

Later on Freddy got into mortality statistics from hunting birds – all from the US Fish and Wildlife Service – funny , I seem to remember the MOE objecting to an American expert witness on the grounds he wouldn’t have particular knowledge for Ontario. Stumbling through it, she ended up trying to make the case that a “kill” by an IWT was no worse than a “kill” by a hunter, but as Scott noted, hunters are obliged to use their harvest for sustenance – weird ethical issues coming from someone who rarely ventures out of Toronto. I guess you could say that wind turbines have a right to “harvest” birds too. I never thought of it that way before!

Freddy also questioned why Dr. Petrie had no papers on the subject of wind turbine impacts on wildlife – good point, but as Scott said, it takes time, money and planning to conduct scientific studies – they aren’t cursory reports for wind companies. And, in fact he has 4 graduate students working on wind related projects. Good news too, but I’m sure he shares the fear that it will all come too late. It was now after 5:30 and Bill Monture had the last opportunity to ask questions that arose out of the cross-examinations. Bill, who is unfailingly polite and co-operative with regards to scheduling, etc., wanted to ask Scott broader questions about effects on other wildlife forms. Immediately both Freddy and Milne-Smith jump up like “whack-a-moles” (where’s a paddle when you need one), objecting on the grounds this would new evidence.

Bill stated, “…that there’s things we should talk about…” and that now that we have the expert here it should be done.

With a smile the chair slowly explains it could have been asked by Bill in his initial cross-examination of Dr. Petrie – but not now.

Well done, I hope other people who do not attend these tribunals read this. As a participant in this tribunal, what you have stated in this article, is 100% truthful. And if you don’t mind, I would like to pass this on to those folks that have no comprehension of what dealing with the Ontario Gov’t. is really like.